Democracy Now’s Amy Goodman led a discussion also involving Chris Hedges and Geoffrey Stone, law professor at the University of Chicago Law School. Hedges supports the disclosure of government secrets to the press by people of conscience where the secrets are disclosed to the press. Stone indicates that what Edward Snowden disclosed was clearly a crime and he should be prosecuted, although the government needs to reevaluate the scope of its surveillance state. Fascinating conversation. My own position is quite close to Hedges on this issue, but I also believe that citizen journalism should be regarded as comparable to mainstream journalism in terms of protection offered from prosecution for engaging with whistle-blowers to discuss what they believe to be government wrong-doing. Elevating citizen journalists (I aspire to assume that role) to the category of the press, of course, means that any whistle-blower could talk to any blogger about any government secret and yet be protected from prosecution. This is a thorny issue, but one where work-arounds seem possible, especially given Stone’s alternative.

Stone argues that where government is acting inappropriate in realms involving classified information, the leakers should be prosecuted, even in situations involving grave government injustice. The press is immune from prosecution in this situation, based on the Pentagon Papers case. Stone’s position is deeply unsettling, however, because the issue today is out-of-control government surveillance. This rampant spying, including on reporters and sources, means that there won’t be any more revelations of government wrongdoing by the press. The current situation amounts to shutting down the press, meaning that the public will be kept in the dark. Stone’s “solution” for this is that government should seek internal solutions to its own injustices, in the dark. Stone asserts this to be a solution despite his earlier statements that governments are strongly motivated in the direction of NOT finding true solutions, but rather in maintaining and aggregating power over the citizens. My challenge to Professor Stone, then would be to offer a real long-term solutions. He pulls out the threat of terrorism card near then end of the discussion to justify what apparently amounts to the status quo approach (prosecute whistle-blowers who talk to the press, which Hedges argues will destroy the press). Hedges further disparages the concern with terrorism, indicating that terrorists communicate off the grid, meaning that the Surveillance State’s victims are ordinary people.

[Note: This discussion occurred prior to more recent disclosures that the U.S. government is collecting far more than metadata]

Here is an excerpt from the discussion:

CHRIS HEDGES: Well, what we’re really having a debate about is whether or not we’re going to have a free press left or not. If there are no Snowdens, if there are no Mannings, if there are no Assanges, there will be no free press. And if the press—and let’s not forget that Snowden gave this to The Guardian. This was filtered through a press organization in a classic sort of way whistleblowers provide public information about unconstitutional, criminal activity by their government to the public. So the notion that he’s just some individual standing up and releasing stuff over the Internet is false.

But more importantly, what he has exposed essentially shows that anybody who reaches out to the press to expose fraud, crimes, unconstitutional activity, which this clearly appears to be, can be traced and shut down. And that’s what’s so frightening. So, we are at a situation now, and I speak as a former investigative reporter for The New York Times, by which any investigation into the inner workings of government has become impossible. That’s the real debate.

NERMEEN SHAIKH: Well, Chris, how do you respond to the point that Geoffrey Stone made and how Snowden identified himself as an ordinary guy? Should any regular government employee or contractor be allowed to disclose whatever information he feels the public ought to be privy to, whether it’s classified by the government and his employer or her employer or not?

CHRIS HEDGES: Well, if—that is what an act of conscience is. And reporters live—our sort of daily fare is built, investigative reporters, off of people who, within systems of power, have a conscience to expose activities by the power elite which are criminal in origin or unconstitutional. And that’s precisely what he did. And he did it in the traditional way, which was going to a journalist, Glenn Greenwald and The Guardian, and having it vetted by that publication before it was put out to the public. Was it a criminal? Well, yes, but it was—I suppose, in a technical sense, it was criminal, but set against the larger crime that is being committed by the state. When you have a system by which criminals are in power, criminals on Wall Street who are able to carry out massive fraud with no kinds of repercussions or serious regulation or investigation, criminals who torture in our black sites, criminals who carry out targeted assassinations, criminals who lie to the American public to prosecute preemptive war, which under international law is illegal, if you are a strict legalist, as apparently Professor Stone is, what you’re in essence doing is protecting criminal activity. I would argue that in large sections of our government it’s the criminals who are in power.

AMY GOODMAN: Professor Stone, your response?

GEOFFREY STONE: Well, first of all, there is, so far as I can tell from everything that’s been revealed, absolutely nothing illegal or criminal about these programs. They may be terrible public policy—I’m not sure I approve of it at all—but the fact is the claim that they’re unconstitutional and illegal is wildly premature. Certainly from the standpoint of what’s been released so far, whether Mr. Hedges likes it or not, or whether Mr. Snowdon likes it or not, these are not unconstitutional or illegal programs.

AMY GOODMAN: Let me go to a letter that you co-signed, Professor Stone, in 2006 with other prominent attorneys about NSA surveillance under President Bush. You were criticizing it. You wrote, quote, “Although the program’s secrecy prevents us from being privy to all of its details, the Justice Department’s defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.” How do you compare that to what we’re seeing today?

GEOFFREY STONE: They’re two completely different programs. The Bush NSA surveillance program was enacted in direct defiance of the Foreign Intelligence Surveillance Act. The Obama program, if we want to call it that, was approved by Congress. That’s number one. Number two is, the Bush program involved wiretapping of the contents of phone conversations. The Supreme Court has long held that that is a violation of the Fourth Amendment, if there’s not an individualized determination of probable cause. The Obama program, if we want to call it that, does not involve wiretapping; it involves phone numbers. And the Supreme Court has long held that the government is allowed to obtain phone records, bank records, library records, purchase records, once you disclose that information to a third party. And there is no Fourth Amendment violation. So they’re two completely different programs.

AMY GOODMAN: But if you just heard our conversation with the mathematician Susan Landau, she argued that often metadata is more revealing than the transcript of an actual conversation. Do you think the law should change, Geoffrey Stone, to include this metadata?

GEOFFREY STONE: Well, I’m not persuaded by her argument that it’s more revealing. I do believe that it’s problematic, and I think, in fact, there should be statutes that prohibit the gathering of this type of data by private entities, as well as by the government, in the absence of at least a compelling justification. And I thought the Supreme Court’s decisions initially on this question were wrong. So I would certainly want to see them differently. But in terms of what the law is, it’s not unconstitutional, it’s not illegal, and it’s completely different from what the Bush administration was doing.

NERMEEN SHAIKH: Chris Hedges, do you agree that—

CHRIS HEDGES: Well, there are plenty of lawyers who disagree with Professor Stone.

GEOFFREY STONE: Not many.

CHRIS HEDGES: Well, the ACLU has just issued a lawsuit over this, claiming that it’s a violation of the Fourth Amendment. So, I haven’t done a poll. Frankly, the legal profession, under this steady assault of civil liberties, can’t hold its head very high. There are a few out there, at the ACLU—

GEOFFREY STONE: Unlike—unlike the journalistic profession?

CHRIS HEDGES: —Michael Ratner and a few others. But, you know—

AMY GOODMAN: Geoffrey Stone, aren’t you on the board of the ACLU, or were you?

GEOFFREY STONE: I’m on the National Advisory Council.

AMY GOODMAN: Yes. So what do you think of them suing the government over this?

GEOFFREY STONE: I think it’s great. I think that they are perfectly right to bring the question. That’s their job. Their job is to challenge whether or not things are constitutional, to raise those questions. That’s exactly what they should be doing. Doesn’t mean they’re always right, but they should be presenting these questions to the courts. That’s their job. That’s their responsibility.

NERMEEN SHAIKH: Chris Hedges, one of the problems that people have pointed to is that there aren’t procedures or mechanisms in place for people within the government to point out wrongdoing when it does occur. Do you think that’s one of the problems that’s occurred in this case with Edward Snowden? Or, for that matter, your most recent article was on Army whistleblower, Private Bradley Manning.

CHRIS HEDGES: Well, we used to have a mechanism. It was called the press. And we used to be able to tell our sources that they would be protected and that they would not be investigated for providing information that exposed the inner workings of power. Unfortunately, the press, like most institutions in this country, and I would add the legal profession, has largely collapsed under this corporate coup d’état that’s taken place and is no longer functioning. And I want to get back, that what this is fundamentally a debate about is whether we are going to have, through the press, an independent institution within this country that can examine the inner workings of power or not. And it is now—I mean, many of us had suspected this widespread surveillance, but now that it’s confirmed, we’re seeing—you know, why did Snowden come out publicly? Well, because I think he knew that they would find out anyway, because they have all of Glenn Greenwald’s email, phone records and everything else, and they can very quickly find out who he was speaking to and whether Snowden had contact with him. And that—you know, I speak as reporter—is terrifying, because it essentially shuts down any ability to counter the official propaganda and the official narrative and expose the crimes. And we have seen in the last few years tremendous crimes being committed by those in power. We have no ability now to investigate them.

AMY GOODMAN: Professor Stone, let me ask you about whether the reporters from The Guardian and The Washington Post should be prosecuted. CNN’s Anderson Cooper put this question to Republican Congressmember Peter King of New York last night.

ANDERSON COOPER: As far as reporters who helped reveal these programs, do you believe something should happen to them? Do you believe they should be punished, as well?
REP. PETER KING: Actually, if they—if they willingly knew that this was classified information, I think actions should be taken, especially on something of this magnitude. I know that the whole issue of leaks has been gone into over the last month, but I think something on this magnitude, there is an obligation, both moral but also legal, I believe, against a reporter disclosing something which would so severely compromise national security.
AMY GOODMAN: Professor Stone, your response to what Peter King is saying?

GEOFFREY STONE: He’s just wrong. The Supreme Court, in the Pentagon Papers case, for example, made very clear that although Daniel Ellsberg could be prosecuted for—as a public official stealing information, that The New York Times and The Washington Post could not be restrained from publishing that information. The court has essentially held that although the government can control classified information at its source by prohibiting employees from revealing it, once the information goes out, it cannot then punish the press for publishing it. It’s a little bit odd as a system. But the idea is that, on the one hand, we have freedom of the press, which has to be preserved; on the other hand, the government has a legitimate interest in maintaining confidentiality at the source within the government itself. So, no, clearly, Greenwald and Reuters and so on, none of those can be — The Guardian, none of those can be punished, consistent with the First Amendment. That’s clear.

NERMEEN SHAIKH: Professor Stone, so do you believe that Edward Snowden’s position is comparable to Daniel Ellsberg’s position with the Pentagon Papers and that The Guardian played a comparable role to The New York Times?

GEOFFREY STONE: So, I think Snowden’s position, based upon what I know now, is much worse. Ellsberg revealed historical information that had really no appreciable threat to the national security. It was all old information about what the government had done in the past. And what Snowden has revealed is information about ongoing programs, which, we’re told, are extremely important to the national security, and we’re told that the revelation of those programs makes them far less efficient. That’s a very serious—potentially very serious harm to the nation. That was not the case in Ellsberg’s situation.

AMY GOODMAN: But, Professor Stone—

GEOFFREY STONE: So I think, from that standpoint, what—

AMY GOODMAN: Henry Kissinger said—

GEOFFREY STONE: Yes.

AMY GOODMAN: —Dan Ellsberg was “the most dangerous man in America,” so they certainly—at that time, they were telling us that what he was doing was threatening national security.

GEOFFREY STONE: He said that at the time before they had an opportunity to really reflect on what was released. Years later, or even weeks later, that was no longer the case. So, I think that those two situations are not remotely comparable, in terms of the harm that Ellsberg did to the country, which I think was trivial, relative to what Snowden has done, which arguably is far more serious.

Let me make another point about civil liberties here, by the way, that it’s extremely important to understand that if you want to protect civil liberties in this country, you not only have to protect civil liberties, you also have to protect against terrorism, because what will destroy civil liberties in this country more effectively than anything else is another 9/11 attack. And if the government is not careful about that, and if we have more attacks like that, you can be sure that the kind of things the government is doing now are going to be regarded as small potatoes compared to what would happen in the future. So it’s very complicated, asking what’s the best way to protect civil liberties in the United States.

CHRIS HEDGES: I have a very—

NERMEEN SHAIKH: Chris Hedges, could you—

CHRIS HEDGES: I just don’t buy this argument that, you know, this hurts national security. I covered al-Qaeda for The New York Times, and, believe me, they know they’re being monitored. The whole idea that somehow it comes as a great surprise to jihadist groups that their emails, websites and phone calls are being tracked is absurd. This is—we’re talking about the wholesale collection of information on virtually most of the American public, and the consequences of that are truly terrifying. At that point, we are in essence snuffing out the capacity of any kind of investigation into the inner workings of power. And to throw out this notion that it harmed—this harmed national security, there’s no evidence for that, in the same way that there is no evidence that the information that Bradley Manning leaked in any way harmed national security. It didn’t. What the security and surveillance state is doing is playing on fear and using that fear to accrue to themselves tremendous forms of power that in a civil society, in a democracy, they should never have. And that’s the battle that’s underway right now, and, frankly, we’re losing.

AMY GOODMAN: I wanted to ask you, Professor Stone, to reflect on Martin Luther King’s letter from Birmingham jail written April 16, 1963, when he said, “One who breaks an unjust law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”

GEOFFREY STONE: Well, obviously, King—

AMY GOODMAN: Could you respond to that?

GEOFFREY STONE: Sure. Obviously, King is right. The question is whether it’s an unjust law. So, people who violate a law because they think it is unjust don’t necessarily fit within the letter from the Birmingham jail. King was talking about protesting racial segregation, and that’s a little bit different in terms of the moral status of it. Now, maybe it’s true. I mean, maybe Chris Hedges is right, and maybe that—that Snowden is a hero, and maybe this is all a fraud on the part of the government, this information serves no useful purpose, and it’s fundamentally important to the United States that it’s been revealed. Maybe that’s true. And if it turns out to be true, then I’ll be the first to say Snowden was a hero. But at the moment, I have absolutely no reason to believe that. And to say that some people act on legitimate conscience and therefore violate unjust laws is not to say that everyone who violates a law is Martin Luther King in the Birmingham jail.

AMY GOODMAN: I want to put that question to Chris, but I wanted to ask you, Geoffrey Stone, if you were Edward Snowden’s attorney, what arguments would you put forward for him right now?

GEOFFREY STONE: Legally, I don’t think he has—honestly, I don’t think he has any legal arguments that would be a defense to the charge that he violated the law about government contractors not disclosing classified information to persons who are not authorized to receive it. I don’t think he has a defense. Some people commit a crime, and they committed the crime. And I don’t know that there’s any defense sometimes.

AMY GOODMAN: Interestingly, Dan Ellsberg faced treason trial, but ultimately, the—he ended up being exonerated because of the illegal wiretapping that was done of him.

GEOFFREY STONE: Well, he wasn’t exonerated. In his case, the judge dropped the charges against him because the Nixon administration searched his psychiatrist’s office in violation of the Constitution, and the judge concluded that that was prosecutorial misconduct, and therefore dismissed the prosecution. If the government does something similar in Snowden’s case and the court finds that it’s a violation of his constitutional rights in the course of the investigation and dismisses the charges, that would be something, as his lawyer, I’d certainly want to know. But on the merits of the charge as they presently—as it presently stands, I think it’s a sentencing question, not a criminality question.

AMY GOODMAN: Chris Hedges, if you could respond to the King quote and the significance of what Snowden did?

CHRIS HEDGES: Well, without figures like Snowden, without figures like Manning, without figures like Julian Assange, essentially, the blinds are drawn. We have no window into what’s being done in our name, including the crimes that are being done in our name. Again, I—you know, having worked as an investigative reporter, the lifeblood of my work were figures like these, who had the moral courage to stand up and name the crimes that they witnessed. And these people are always, at the moment that they stand up—and even King, of course, was persecuted and reviled and denounced, hounded by J. Edgar Hoover, who attempted, through blackmail, to get him to commit suicide before accepting the Nobel Prize. Let’s not forget that all of these figures, like Snowden, come under this character assassination, which, frankly, I think Professor Stone is engaging in. And that’s not uncommon. That’s what comes with the territory when you carry out an act of conscience. It’s a very lonely and frightening—and it makes these figures, like Snowden, deeply courageous, because, I mean, the whole debate—traitor or whistleblower—for me, you know, hearing this on the press is watching the press commit collective suicide, because without those figures, there is no press.

AMY GOODMAN: I wanted to end with Professor Stone. You were an early adviser to President Obama. You gave him his first job at University of Chicago Law School. You were the dean of the University of Chicago Law School. What would you advise him today?

GEOFFREY STONE: I think there needs to be a really careful re-evaluation of the classification system. I—there’s no question that we wildly overclassify, and that creates all sorts of problems, both for the press and for the ability of the government to keep secrets, because if you try to keep everything secret, you don’t effectively keep very much secret. So I think that’s critical. I think there is a serious question about how we make the trade-off between security and privacy, and I think that that’s an issue that needs to be addressed carefully. Certainly, within the administration and within the government, to the extent there are genuinely secret policies that need to be kept secret, and I believe that perfectly possible, then I think that does not immunize them from serious debate by responsible people within the four corners of the administration, bringing in people who can have national security clearances to take the devil’s advocate position and challenge these issues. So I think there’s a lot that can and should be done, and I think that it’s easy to get swept up in the notion of security being the be all and end all. This is a nation that’s committed to individual privacy, to freedom of the press, to freedom of speech, and those values need to be respected. And I think government constantly has to be re-examining itself, because all the temptations are in the wrong direction.

NERMEEN SHAIKH: Professor Geoffrey Stone, before we conclude, I’d like to ask you about an article you wrote in 2011 for The New York Times called “Our Untransparent President.” You wrote, quote, “The record of the Obama administration on this fundamental issue of American democracy has surely fallen short of expectations. This is a lesson in ‘trust us.’ Those in power are always certain that they themselves will act reasonably, and they resist limits on their own discretion. The problem is, ‘trust us’ is no way to run a self-governing society,” end-quote. What’s your assessment of the comments that you made then relative to now and his—Obama’s record on transparency and civil liberties?

GEOFFREY STONE: Well, I think the comment was correct then, and I think it’s correct today. I think that there’s a temptation on the part of public officials to basically say, “We don’t to be hassled, we don’t want to be bothered, we don’t want to be criticized, so we’ll just do what’s in the best interest of the country, and we don’t have to tell anybody about it.” And that’s a huge danger in a democracy. And—but the fact that I accept that and passionately believe it does not mean that everything the government does in confidence and in secret should not be in confidence or in secret. The problem is where to draw the line.

So, yes, I would criticize the Obama administration, in general, for being overly concerned with secrecy and not being sufficiently transparent. The point I made earlier about overclassification is a good example. But at the same time, I do recognize that there are situations in which secrecy is critical, and the problem is being able to discern when that’s necessary and when it’s not. And to do that, you need to have people within the debate who are internally challenging the necessity for secrecy and confidentiality. I don’t think the Obama administration has done a very good job of that.

AMY GOODMAN: Chris Hedges, just 30 seconds, and I know that you were attending the Bradley Manning trial, but linking the two.

CHRIS HEDGES: Well, we’re talking about the death of a free press, the death of a civil society. This is far beyond a reasonable debate. We make the East German Stasi state look like the Boy Scouts. And if we don’t wrest back this power for privacy, for the capacity to investigate what our power elite is doing, I think we can essentially say our democracy has been snuffed out.

Erich Vieth is an attorney focusing on consumer law litigation and appellate practice. He is also a working musician and a writer, having founded Dangerous Intersection in 2006. Erich lives in the Shaw Neighborhood of St. Louis, Missouri, where he lives half-time with his two extraordinary daughters.